APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD SUTHERLAND
PROCURATOR FISCAL, GLASGOW
Appellant, Shead, Drummond Miller
Respondent, Cathcart, A.D.
11 May 1999
This is the appeal by Gary McIntyre who was convicted on charges of theft and a contravention of section 178(1)(b) of the Road Traffic Act. It is only the theft conviction that is appealed. The appellant was a passenger in the car driven by a co-accused, Wood, without the owner's consent. The car was driven to the locus. There Wood got out, and went to an adjacent street where he removed two wheel trims from a car. As Wood was returning to the car the appellant saw a police car in the vicinity and "waved emphatically", as it is put by the sheriff, to Wood to point out the presence of the police and to tell him to come back to the car quickly. Wood in fact saw the appellant's warning, ran to the car and started the engine and drove off. They were intercepted a very short distance later when the wheel trims were found. The police cautioned the appellant and asked him why he had been gesturing and he replied "You try and prove I was doing my watchie".
Mr Shead on the appellant's behalf today has argued that the only real piece of evidence against the appellant was the evidence that he was waving emphatically to the co-accused. By that time however the theft had already been committed by Wood who was on his way back to the car with the stolen goods. In these circumstances there was insufficient to entitle the sheriff to come to the conclusion that the appellant was participating in any way in the theft of the items, and at best he could have been charged with something by way of attempting to pervert the course of justice or something of that kind. As far as the comment made by the appellant to the police is concerned, Mr Shead emphasised that the sheriff does not appear to have made anything of this in coming to his conclusion and invited us to take the same view. The Crown reply to this was to say that the sheriff was entitled to conclude on the whole evidence as he did that the appellant's actings allowed the conclusion that he knew of the common criminal plan to steal the wheel trims, was a party to it and participated in it. If one looks at the context as a whole, Wood had taken this car without the owner's consent and the appellant was travelling as a passenger with him. It stopped for no apparent reason at the locus. Wood got out of the car for no apparent reason, came back shortly afterwards bearing two stolen wheel trims and when seen by the appellant, the appellant waves emphatically to him to warn him to get back into the car quickly because the police are around. In our view the sheriff was entitled to take the view that this indicated that the appellant knew full well what Wood's purpose was in leaving the car. Furthermore in gesticulating as he did to the co-accused, in our view this puts the appellant very much in the same position as the lookout or indeed the getaway driver in the standard example of the bank robbery. In our view the evidence taken as a whole, including the appellant's comment to the police, was such that the sheriff was fully entitled to form the opinion that the appellant was a participant in this enterprise from the start, and accordingly the
sheriff was entitled to convict. We shall therefore answer the question in the affirmative.